Speen v. Crown Clothing Corp.

United States Court of Appeals
For the First Circuit

No. 96-1402

WILLIAM SPEEN,

Plaintiff, Appellant,

v.

CROWN CLOTHING CORPORATION, RICHARD SILVERMAN,
AND JACK SILVERMAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Cyr, Boudin and Stahl,
Circuit Judges.

Philip R. Olenick with whom Paul L. Nevins was on brief for

appellant.
Timothy P. Cox with whom John C. Wyman and Roche, Carens &

DeGiacomo were on brief for appellees.

December 23, 1996

STAHL, Circuit Judge. Plaintiff-appellant, William
STAHL, Circuit Judge.

Speen, appeals from a district court judgment as a matter of

law in favor of defendants-appellees Crown Clothing

Corporation, Jack Silverman, and Richard Silverman in an age

discrimination and pension rights suit involving his alleged

wrongful termination in violation of federal and

Massachusetts law. Because Speen failed to provide

sufficient evidence to support a finding that he was a Crown

employee for the purposes of his federal and state statutory

claims, or evidence sufficient to support his remaining

Massachusetts common law tort claims, we affirm.

Background and Prior Proceedings
Background and Prior Proceedings

Speen began his career as a men's clothing salesman

following his discharge from the U.S. Army in 1945. Over the

ensuing twenty-seven years, Speen served as a New England

sales representative for various companies. In 1972, he

became a sales representative for Crown Clothing Corporation

("Crown"). Jack and Richard Silverman respectively serve as

Crown's president and treasurer.

For the next twenty years, Speen travelled

throughout New England as a Crown representative hawking

Crown products -- sports jackets, raincoats and the like --

to men's clothing stores. For some of that time, Speen, with

Crown's approval, also sold non-competing lines of men's

clothes from other manufacturers, most notably slacks. By

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1992, however, Speen's relationship with Crown increasingly

soured. Speen's immediate supervisor, Jack Silverman, often

expressed his dissatisfaction with Speen's declining raincoat

sales. In December 1992, Crown notified Speen -- first

orally and then in writing -- that his service would be

terminated, effective the end of the month. Crown went on to

replace Speen, then 71 years old, with a new representative,

aged 51.

In June 1993, unwilling to accept Crown's adverse

action, Speen filed a complaint with the Massachusetts

Commission Against Discrimination (MCAD). Without benefit of

any MCAD determination that would carry with it preclusive

effect, Speen filed this suit in federal district court in

November 1994. Speen's federal action claimed that his

termination amounted to unlawful age discrimination under the

federal Age Discrimination in Employment Act (ADEA), 29

U.S.C. 621-634, and Mass. Gen. L. ch. 151B, 9, and also

sought pension rights under the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. 1140. Speen, in addition,

advanced a Massachusetts common law tort claim against the

Silvermans, alleging a tortious interference with his

advantageous business relationship with Crown.1

1. Speen also asserted claims under Massachusetts statutes
governing minimum wage, overtime pay, and the frequency of
payment of wages. In its Memorandum and Order of May 9, 1995,
the district court found these claims to be time-barred under
the respectively applicable statutes of limitations. Speen

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The matter proceeded to trial before a jury. At

the conclusion of plaintiff's evidence, the defendants filed

a motion for judgment as a matter of law pursuant to Fed. R.

Civ. P. 50(a) on essentially two grounds. The first was that

Speen was not a Crown employee, but rather an independent

contractor who enjoyed no protection under the applicable

statutory provisions.2 The second was that Speen had not

produced sufficient evidence to allow a jury to conclude that

he was maliciously discharged because of his age in violation

of Massachusetts common law. The court granted the motion,

ordering a judgment for the defendants on all claims. This

appeal ensued.

For the reasons set forth below, we reject Speen's

arguments concerning the employee/independent contractor

issue and his Massachusetts common law tort claims and thus

affirm the district court's decision.

subsequently voluntarily dismissed these claims.

2. Crown and the Silvermans had previously filed a motion to
dismiss and a motion for summary judgment on essentially the
same grounds. The district court denied both motions. At the
summary judgment hearing, the district court noted that the
undisputed facts "weigh[ed] quite heavily toward an
evaluative determination of independent contractor status,"
explaining that it was "very likely that that's the way it's
going to appear to [the court] at the end of the plaintiff's
evidence." The court nonetheless denied the motion,
determining that a more appropriate time for resolving the
employee/independent contractor issue would be at the close
of the plaintiff's evidence in connection with a motion for
judgment as a matter of law.

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Standard of Review
Standard of Review

We review de novo a district court's decision to

grant judgment as a matter of law pursuant to Rule 50(a). In

exercising that plenary review, we use "the 'same stringent

standard incumbent upon the trial court in the first

instance.'" Greenberg v. Union Camp Corp., 48 F.3d 22, 26

(1st Cir. 1995) (quoting Favorito v. Pannell, 27 F.3d 716,

719 (1st Cir. 1994)).

We thus consider the evidence and the reasonable

inferences that are to be drawn from it in the light most

favorable to the party opposing the motion, in this case, the

plaintiff. A motion for a judgment as a matter of law "is

proper at the close of plaintiffs' case only when the

plaintiffs' evidence, viewed in this light, would not permit

a reasonable jury to find in favor of the plaintiffs on any

permissible claim or theory." Murray v. Ross-Dove Co., 5

F.3d 573, 576 (1st Cir. 1993).

The Employee/Independent Contractor Issue
The Employee/Independent Contractor Issue

Crown contends that Speen cannot sue under the ADEA

or the Massachusetts anti-age discrimination statute, Mass.

Gen. L. ch. 151B, because, for purposes of those statutes, he

is not a covered "employee," but rather an unprotected

"independent contractor." Speen vigorously disputes this

contention and further argues that the issue of his proper

classification, in any event, was a question for the jury

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that should not have been decided by the district court on a

Rule 50(a) motion.

Both federal and Massachusetts courts have found

that the federal and Massachusetts statutes prohibiting age

discrimination in employment do not reach independent

contractors. See Robinson v. Overseas Military Sales Corp.,

21 F.3d 502, 509 (2d Cir. 1994); Hayden v. La-Z-Boy Chair

Co., 9 F.3d 617, 619 (7th Cir. 1993); Daughtrey v. Honeywell,

Inc., 3 F.3d 1488, 1495-96 (11th Cir. 1993); Oestman v.

National Farmers Union Ins. Co., 958 F.2d 303, 304-05 (10th

Cir. 1992); Garrett v. Phillips Mills, Inc., 721 F.2d 979,

980 (4th Cir. 1983); Comey v. Hill, 438 N.E.2d 811, 814

(Mass. 1982). See generally, Francis M. Dougherty,

Annotation, Who, Other Than Specifically Excluded Persons, Is

"Employee" Under 4(a)(1) Of Age Discrimination in

Employment Act Of 1967 (29 USCS 623(a)(1)), 125 A.L.R. Fed.

273, 287-89 (1995) (collecting federal cases).

The salience of the employee/independent contractor

distinction in age discrimination cases thus is clear. Less

easily discernible, however, are the tests federal and

Massachusetts law use to distinguish a covered employee from

an unprotected independent contractor.

1. Employee Status Under Massachusetts Law

In interpreting the Commonwealth's employment

discrimination law, Mass. Gen. L. ch. 151B, Massachusetts

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courts use a common law test to distinguish employees who are

covered by the statute from independent contractors who are

not. Comey, 438 N.E.2d at 814. The parties in this case both

concede this point. Where they differ is in their assessment

of what factors Massachusetts courts look to in applying the

common law test. Speen argues that a claimant is considered

an employee under Massachusetts law if he can show that the

employer enjoyed the right to control his labor. This, Speen

contends, he can do. In particular, he argues he was a Crown

employee because he had to call in his orders every night and

fill out special Crown order forms. Crown responds that this

type of activity does not make one an employee under

Massachusetts law, since a mere showing of some element of

control is not conclusive under the multifactored test

Massachusetts courts use to determine employee status.

Speen points to older Massachusetts cases which

indicate that the test of employee status is the right to

control. McDermott's Case, 186 N.E. 231, 232 (Mass. 1933)

("The exact point at issue is whether the claimant was a

servant or employee, or an independent contractor. The

essence of the distinction is the right of control. . . .

Other considerations and tests are important only as they

bear upon the right of control."); Khoury v. Edison Electric

Illuminating Co., 164 N.E. 77, 78 (Mass. 1928) ("Although the

conclusive test of the relationship of master and servant is

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the right to control, other factors may be considered in

determining whether the right to control exists, but they are

subordinate to this primary test.").

Upon initial inspection, the language in these

cases would seem to support Speen's contention that the

district court misstated the relevant Massachusetts standard

when it concluded that Massachusetts uses a multifactored

analysis in distinguishing employees from independent

contractors. A closer reading of the cases and consideration

of later Massachusetts decisions, however, dispels this

conclusion.

In McDermott's Case, for example, the court

explained that an independent contractor is one "not subject

to direction and control as to every detail of the work" to

be performed. Conversely, an employee is one who "at every

moment, with respect to every detail. . . is bound to

obedience and subject to direction and control." McDermott's

Case, 186 N.E. at 232. The Khoury court explained this

feature of the Massachusetts common law test as follows: "the

employee must be subject to control by the employer, not only

as to the result to be accomplished but also as to the means

to be used." Khoury, 164 N.E. at 78.

Such language, gleaned from the decisions upon

which Speen's counsel relies, indicates the great degree to

which Speen and Massachusetts courts mean rather different

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things when they refer to "right of control" within the

context of the common law test. Simply put, the level of

employer control ("at every moment, with respect to every

detail") necessary to conclusively establish employee status

without looking to any of the additional "subordinate"

factors is such that, as a practical matter, one may speak of

the common law test as being a multifactored one.

Subsequent Massachusetts case law, in fact,

acknowledges as much. While recognizing the vitality of the

common law test in Massachusetts, for example, the Comey

court explained that "[t]rial judges should carefully and

fully instruct juries on all the factors that may be useful

in distinguishing employees from independent contractors."

Comey, 438 N.E.2d at 815. This language indicates that the

common law test in Massachusetts, as in other states, while

directed towards the question of right of control, involves

the assessment of multiple factors. See Restatement (Second)

of Agency 220 (1957). Indeed, the Comey court immediately

goes on to cite with approval federal cases which, it

explains, "list[] factors which may distinguish employees

from independent contractors." Id.

Confronted with such language, lower Massachusetts

courts have proceeded on the view that

[i]n the employment context, a master-
servant relationship is determined by a
number of factors, including the right of
the employer to control the details of

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the work done by the employee, the method
of payment, the skill required in the
particular occupation, whether the
employer supplies the tools,
instrumentalities and place of work, as
well as the parties' own belief as to
whether they are creating a master-
servant relationship.

Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 253

(Mass. App. Ct. 1991).

The district court thus did not err when it

determined this multifactored approach to be the applicable

legal test in Massachusetts. Contrary to Speen's assertion

that the district court found that "subordinate" factors

might outweigh the existence of a right of control, the state

cases tell us that Massachusetts courts make the employee

determination in this way only when a right of control is not

conclusively established and other factors need to be

examined. Given how Massachusetts precedent discusses "right

of control" in its technical sense, this would seem to mean

the multifactored test is triggered when employer control

does not encompass the person hired "at every moment, with

respect to every detail." McDermott's Case, 186 N.E. at 232.

It is thus not so much the case that additional

"subordinate" factors might outweigh the existence of a right

of control (as Speen wrongly contends was the district

court's view) as it is that the failure to demonstrate a

"right of control" in the narrowly-defined technical sense of

that term serves as the gateway to a multifactored analysis.

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This analysis, in turn, does not ignore but takes into

account the level of control present in the employment

relationship despite the fact that this control, taken alone,

would not be enough to establish employee status.

2. Employee Status Under the ADEA

Federal courts have used at least three different

tests to determine whether a claimant is a covered employee

rather than an unprotected independent contractor under anti-

discrimination acts such as the ADEA. The first test is the

traditional common law test of agency which focuses on the

employer's right of control using a multifactored analysis.

See Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir. 1993). The

second test -- typically more expansive -- is the "economic

realities" test, which holds that "employees are those who as

a matter of economic reality are dependent upon the business

to which they render service." Bartels v. Birmingham, 332

U.S. 126, 130 (1947); Doty v. Elias, 733 F.2d 720, 722-23

(10th Cir. 1984). The third test is a "hybrid" test, which

considers the economic realities of the employment

relationship but retains a focus on the employer's right to

control. See Oestman v. National Farmers Union Ins. Co., 958

F.2d 303 (10th Cir. 1992).

The First Circuit has not previously decided which

test to apply to the ADEA. In view of the Supreme Court's

unanimous decision in Nationwide Mut. Ins. Co. v. Darden, 503

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U.S. 318 (1992), we now adopt the common law test for

determining who qualifies as an "employee" under the ADEA and

expressly hold that covered employees under the ADEA are

those who are employees under traditional agency law

principles.

While the Supreme Court has not directly determined

this issue, the Court in Darden faced the task of

interpreting a definition of "employee" found in ERISA, 29

U.S.C. 1002(6) ("any individual employed by an employer"),

that is virtually identical to that found in the ADEA, 29

U.S.C. 630(f) ("an individual employed by any employer").

See Darden, 503 U.S. at 323. The Court found this to be a

"nominal definition" that "is completely circular and

explains nothing." Id. In the absence of any provision

suggesting a contrary congressional design or an indication

that "absurd results" would follow, the Court took the view

that the term "employee" should be interpreted in accordance

with traditional agency law principles:

"[w]here Congress uses terms that have
accumulated settled meaning under. . .
the common law, a court must infer,
unless the statute otherwise dictates,
that Congress means to incorporate the
established meaning of these terms. . . .
In the past, when Congress has used the
term 'employee' without defining it, we
have concluded that Congress intended to
describe the conventional master-servant
relationship as understood by common-law
agency doctrine."

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Darden, 503 U.S. at 322-23 (internal citations omitted)

(quoting Community for Creative Non-Violence v. Reid, 490

U.S. 730, 739-40 (1989) (internal quotation marks omitted)).

To help avoid any confusion on the matter, the

Darden Court went on to summarize the operative common law

test with the following language:

"In determining whether a hired party is
an employee under the general common law
of agency, we consider the hiring party's
right to control the manner and means by
which the product is accomplished. Among
the other factors relevant to this
inquiry are the skill required; the
source of the instrumentalities and
tools; the location of the work; the
duration of the relationship between the
parties; whether the hiring party has the
right to assign additional projects to
the hired party; the extent of the hired
party's discretion over when and how long
to work; the method of payment; the hired
party's role in hiring and paying
assistants; whether the work is part of
the regular business of the hiring party;
whether the hiring party is in business;
the provision of employee benefits; and
the tax treatment of the hired party."

Id., 503 U.S. at 323-24 (quoting Reid, 490 U.S. at 751-52

(footnotes omitted)).

The Court went on to stress that the common law

test requires that "[']all of the incidents of the

relationship must be assessed and weighed with no one factor

being decisive.'" Darden, 503 U.S. at 324 (quoting NLRB v.

United Ins. Co. of America, 390 U.S. 254, 258 (1968)).

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We conclude that the Court's opinion in Darden is

sufficiently clear to remove doubt as to the identity of the

proper standard and its contours. We therefore disregard

decisions in those circuits that have employed standards

other than the common law test in determining whether a

claimant was a covered employee under the ADEA. See, e.g.,

Oestman, 958 F.2d at 305 (the Tenth Circuit applying the

hybrid test in determining whether an insurance agent is an

employee under the ADEA). But see Frankel v. Bally, Inc.,

987 F.2d 86, 90 (2d Cir. 1993) (holding that, in the wake of

Darden, the traditional common law test for agency must be

applied to the ADEA instead of the hybrid standard).

The Darden decision also circumscribes otherwise

suggestive language in First Circuit case law interpreting

federal employment legislation such as the Fair Labor

Standards Act (FLSA). In earlier decisions, this court has

looked to a line of Supreme Court precedent interpreting the

FLSA and Social Security Act to reach the view that "[i]n

determining employer status, 'economic reality' prevails over

technical common law concepts of agency." Donovan v. Agnew,

712 F.2d 1509, 1510 (1st Cir. 1983) (FLSA case) (citing

Goldberg v. Whitaker, 366 U.S. 28, 33 (1961) (FLSA case)

(citing United States v. Silk, 331 U.S. 704, 713 (1947)

(Social Security Act case) and Rutherford Food Corp. v.

McComb, 331 U.S. 722, 729 (1947) (FLSA case))).

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This line of cases essentially adopted the non-

common law view we considered above, namely that "employees

are those who as a matter of economic reality are dependent

upon the business to which they render service." Bartels v.

Birmingham, 332 U.S. at 130. The Darden Court, however,

explicitly differentiated the definitions of employee found

in the FLSA from that in ERISA, which virtually mirrors the

ADEA in this regard. See Darden, 503 U.S. at 325-26. The

Court's analysis of the difference between these two pieces

of legislation suggests that this circuit's earlier

pronouncements in FLSA cases like Donovan concerning use of

the "economic reality" test in determining employee status

may need to be confined to the FLSA context in which they

were first enunciated. In any event, in view of the Court's

express reasoning in Darden, we feel confident in reasoning

that the "economic reality" test cannot be readily imported

into the ADEA context, either on its own or as part of some

"hybrid" test that amalgamates the "economic reality"

standard and the traditional common law approach.

3. Speen's Status Under the ADEA and Mass. Gen. L.

ch. 151B

Based on our review of the relevant federal and

state precedent, we are of the view that federal and

Massachusetts law use roughly identical tests based on

traditional agency law principles to determine whether a

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claimant in an age discrimination suit is a protected

employee.

There may be some question whether the federal and

state tests are employed in exactly the same way in view of

some of the language in older Massachusetts decisions we

considered above. These earlier opinions speak of the right

of control as if it were a predominant factor that is

considered before and above others, at least in some

instances. This way of employing the multifactor test runs

counter to instructions the Supreme Court reiterated in

Darden, 503 U.S. at 324 ("all of the incidents of the

relationship must be assessed and weighed with no one factor

being decisive.") (internal quotations omitted). To the

extent any divergence between the federal and Massachusetts

multifactor test might exist,3 it would seem to involve cases

in which a hired party is subject to the "direction and

control" of the hiring party "at every moment, with respect

to every detail." McDermott's Case, 186 N.E. at 232.

A review of the record, however, reveals that

Speen's claim does not present such a case. The record does

not contain evidence that even remotely suggests Speen was

subject to the "direction and control" of Crown "at every

3. As we more fully explained above, we are not sure such a
difference exists since more recent Massachusetts opinions
cite federal cases and the Restatement (Second) of Agency in
support of their discussion.

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moment, with respect to every detail." We are thus convinced

that federal and Massachusetts law confront Speen with

multifactored tests concerning employee status that are, as a

practical matter, indistinguishable.

Looking at the record with this common

multifactored test in mind -- even through a lens that

requires us to consider the evidence and the reasonable

inferences that are to be drawn from it in the light most

favorable to Speen as the non-moving party -- we conclude

that the district court correctly granted Crown's motion for

a judgment as a matter of law on the federal ADEA and

Massachusetts statutory age discrimination claims.

We do not see how the jury was presented with

evidence sufficient to support a finding that Speen was an

employee rather than an independent contractor. Speen's

counsel vigorously argues that the evidence presented

established that Crown kept Speen on a "short leash" and that

he had to obey "onerous work rules." The evidence

overwhelmingly shows, however, that Speen was kept on a

rather long leash, if not actually allowed to run free in a

rather large yard, and was allowed to follow procedures that

afforded him the type of independence for which employees

typically yearn.

We first call attention to the substantial number

of factors that, as the district court rightly noted, weigh

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in favor of a finding that Speen's relationship with Crown

was that of an independent contractor. The evidence reveals

that Speen himself decided where he went and how long he

worked on any particular day. How and in what order he

covered his territory was something he determined. Speen was

not required to report to a Crown place of business on a

daily basis; in fact, he appeared at a Crown location

infrequently during the year.

Furthermore, Speen was not required to carry

anything, do anything, or say anything in particular as he

went about trying to sell Crown (and other) products.

Although Crown provided Speen with some business cards that

announced him as a Crown representative and also provided him

with samples that he was free to use in attempting to make

sales, the evidence does not indicate that Crown compelled

Speen to do anything in particular or somehow controlled the

manner in which Speen attempted to sell men's clothing. The

fact that Speen was paid on a commission basis also weighs in

favor of a finding of independent contractor status, as does

the fact that he received Form 1099s rather than W-2s for

federal tax purposes.

Moreover, Speen had early on told his Crown

supervisors he wished to be treated as an employee and in

particular wished to be enlisted in Crown's employee

retirement pension plan. Crown refused and gave Speen a

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take-it-or-leave-it response, but Speen continued his

relationship with Crown. He did not reject what was offered;

rather, he accepted it and worked under this regimen for many

years. The parties' understanding and Speen's exclusion from

Crown's employee pension plan thus represent two additional

factors that weigh in favor of a finding of independent

contractor status.

Several other salient factors were also present in

the Speen-Crown relationship, but the district court

correctly noted that they are all compatible with either an

independent contractor or employee relationship. Thus,

although Speen was required to phone Crown daily and report

his sales and the calls he had made, typically by leaving

information on an answering machine, this arrangement is

equally compatible with the status of either an independent

contractor or employee.

Crown required Speen to attend two sales meetings a

year that featured the introduction of the new season's line

of clothing. He also was required to fill out orders he

obtained on forms that Crown provided. Speen also decided to

stop selling non-Crown items once he reached one million

dollars in sales on Crown's line of products. The district

court correctly noted that these features of the Speen-Crown

relationship are essentially neutral in terms of the

multifactor test, since they are equally compatible with

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either an employee or independent contractor status. The

evidence developed at great and tedious length during the

plaintiff's case on these points thus did not significantly

advance Speen's view of his relationship with Crown.

On the other hand, the evidence presented reveals

not only that Speen did accept the take-it-or-leave-it

proposition Crown offered him, but also that he went on to

form a corporation, Newton Company, Inc. ("Newton"), of which

he became an employee. Some dispute exists in the record as

to the reason behind Speen's decision to establish the

corporation, but its function is uncontroverted. Crown

issued checks made out jointly to Newton and Speen for the

commissions Speen's services earned, and Newton, in turn,

paid Speen. The district court correctly noted that this

fact, while not conclusive in any specific sense, constituted

an additional factor militating against a finding of employee

status.

Under the multifactored test, we conclude that

there was not enough evidence from which a factfinder could

make a reasoned determination in favor of Speen on the

question of whether he was a Crown employee for purposes of

the ADEA or Massachusetts law. As the district court ably

determined, a finding for the plaintiff would not comport

with the applicable legal standard governing employee status.

The ERISA Claim
The ERISA Claim

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The preceding analysis also disposes of Speen's

ERISA claim. In view of the Supreme Court's unanimous

interpretation of the term "employee" in Darden, 503 U.S. at

323, Speen can be considered an employee for ERISA purposes

only if we so find using the same test we have just used to

determine that he is not an employee for ADEA purposes. We

conclude, therefore, that Speen's ERISA claim fails for lack

of standing.

The Massachusetts Common Law Tort Claims
The Massachusetts Common Law Tort Claims

Speen finally appeals the district court's

disposition of his Massachusetts common law claims.

Specifically, he alleged that the Silverman brothers

tortiously interfered with his advantageous relationship with

Crown. The district court entered a judgment as a matter of

law in favor of the defendants on the tortious interference

claim as well.

Under established Massachusetts jurisprudence, a

plaintiff suing for relief on a claim of tortious

interference must prove the existence of the following: "(1)

a business relationship or contemplated contract of economic

benefit; (2) the defendant's knowledge of such [a]

relationship; (3) the defendant's intentional and malicious

interference with it; (4) the plaintiff's loss of advantage

directly resulting from the defendant's conduct." Comey, 438

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N.E.2d at 816 (citing Owen v. Williams, 77 N.E.2d 318 (Mass.

1948)).4

Importantly, for our purposes here, Massachusetts

case law indicates that this tort claim does not require a

finding that the plaintiff was an employee, but rather

encompasses independent contractors as well. See Comey, 438

N.E.2d at 816-17. This lifts the barrier that proved fatal

to Speen's federal and state statutory claims.

The tort of interference with an advantageous

relationship, of course, does not recognize a right to

lifetime tenure or a perpetual business relationship.

Massachusetts case law discussing the claim in the context of

discharge cases explains that companies and their supervisors

have the right to fire or terminate the services of hired

parties so long as they do not do so "malevolently, i.e., for

a spiteful, malignant purpose, unrelated to the legitimate

corporate interest." Wright v. Shriners Hosp., 589 N.E.2d

1241, 1246 (Mass. 1992) (quoting Sereni v. Star Sportswear

Mfg., 509 N.E.2d 1203, 1206 (Mass. App. Ct. 1987)). Under

4. Massachusetts courts have recently stated a plaintiff
must prove: "(1) he had a contract with a third party; (2)
the defendant knowingly induced the third party to break that
contract; (3) the defendant's interference, in addition to
being intentional, was improper in motive or means; and (4)
the plaintiff was harmed by the defendant's actions." Wright

v. Shriners Hosp., 589 N.E.2d 1241, 1245 (Mass. 1992)

(quoting G.S. Enterprises v. Falmouth Marine, 571 N.E.2d

1363, 1369 (Mass. 1991)). We do not believe this more recent
formulation changes our analysis.

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Massachusetts law, corporations and corporate officers thus

possess both a qualified privilege and a corresponding "duty"

to shareholders to discharge hired parties when those hired

"d[o] not measure up to the job." Sereni, 509 N.E.2d at

1206.

This qualified privilege and concomitant duty,

necessarily, are not unbounded. The privilege does not

excuse unlawful malevolence or malice in connection with a

decision to discharge a hired party. Whether the requisite

malice exists for a defendant to be held liable under this

cause of action "depends on the evidence in each case and on

what the trier of fact may reasonably infer from that

evidence." Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 24

(Mass. 1981). For our purposes, it is only important to note

that Massachusetts courts treat a showing of intentional age

discrimination as sufficient to meet the proof of malice

needed for recovery under this tort claim. See Comey, 438

N.E.2d at 816-17.

Thus, our inquiry turns to whether Speen presented

sufficient evidence of age discrimination to require the

question to be put to the jury. For reasons that follow, we

conclude he did not.

In reaching this result, we focus both on Speen's

proffered statistical arguments regarding the treatment of

other Crown salesmen and his alleged direct evidence of

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discriminatory motive. On the issue of use of statistical

evidence, our cases5 establish that a plaintiff need not and

"should not be required to produce 'smoking-gun' evidence

before prevailing in a discrimination suit. There are many

veins of circumstantial evidence that may be mined by a

plaintiff to this end. These include . . . statistical

evidence showing disparate treatment by the employer of

members of the protected class." Mesnick v. General Elec.

Co., 950 F.2d 816, 824 (1st Cir. 1991). Massachusetts courts

have allowed the use of indirect evidence of disparate

treatment, including evidence concerning "the employer's

general practices and policies concerning employment of

[protected classes]." Lewis v. Area II Homecare For Sr.

Citizens, 493 N.E.2d 867, 872 (Mass. 1986).

The difficulty with Speen's attempts to use

statistical evidence was not in what he was trying to

accomplish but rather how. In particular, Speen attempted to

rely on evidence that compared Crown's treatment of Speen and

Speen's sales figures with other members of Crown's sales

force. Other testimony, however, established that Crown

5. For the purposes of evaluating the age discrimination
issue we of course focus on relevant Massachusetts
precedents. To the extent, however, that Massachusetts courts
approvingly cite federal cases in discussing the criteria
concerning proof of discrimination, we turn to federal case
law where necessary or fruitful. See, e.g., Lewis v. Area II

Homecare For Sr. Citizens, 493 N.E.2d 867, 872 (Mass. 1986)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-

05 (1973)).

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expected different results from differently positioned sales

representatives, depending on their territory, whether they

were new to a territory, and other factors. In turn, Speen

failed to explain why the group that he selected for

treatment was an appropriate and representative sample.

Judge Keeton correctly characterized Speen's statistical

method as one involving "simply picking out whatever

employees the plaintiff wants to pick out from all the

evidence before the court, treat[ing] those as if they were

the only instances, and urg[ing] the jury to draw inferences

of age discrimination from that comparison." Judge Keeton

was right in saying,

That won't do....[I]t doesn't take an
expert on statistical method to
understand that of course [it]'s not
appropriate to limit yourself [to some of
the population] when you're looking at
evidence for the purpose of drawing an
inference from a statistical distribution
to pick only a few [people] rather than
some[ number] that can be shown in some
way on a reasoned basis to be at least a
representative sample if not a
consideration of all the evidence.

Numbers selected in such an unreasoned fashion are

not sufficient to support a reasoned inference of

impermissible discrimination. Ironically, the evidence

presented weighs against the finding of disparate treatment

that Speen sought to prove. Out of a sales force of twenty

people, all five salesmen over the age of 70 at the time

Speen was discharged in December 1992 were still selling for

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Crown at the time of the trial of Speen's claim in March

1996. Combined with the fact that no other salesmen

experienced a larger decline in sales than Speen during the

five year period 1987-1992, this part of the evidence does

not permit a reasoned inference either of age discrimination

or that Crown's proffered reason for terminating Speen

(declining and unsatisfactory sales figures) was pretextual.

Contrary to Speen's assertions, a different result

does not obtain if we consider Speen's testimony about the

alleged statement that Jack Silverman made when Speen

allegedly asked Silverman to justify the decision to fire

him: "Why do I need a 71 year old when I can have a 51 year

old?" This piece of evidence, which we must credit as true

in view of the requirement that we review the evidence in the

light most favorable to the nonmoving party, would still not

enable a jury to draw a reasonable inference that Speen was

fired due to his age.

In reaching this conclusion, we first call

attention to the line of Massachusetts and federal cases

which indicate that "'isolated or ambiguous remarks, tending

to suggest animus based on age, are insufficient, standing

alone, to prove an employer's discriminatory intent.'" Blare

v. Husky Injection Molding Sys., 646 N.E.2d 111, 118 n.9

(Mass. 1995) (quoting Fontaine v. Ebtec Corp., 613 N.E.2d

881, 885 n.7 (Mass. 1993) (citing Gagne v. Northwestern Nat'l

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26

Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989) and Leichihman v.

Pickwick Int'l, 814 F.2d 1263, 1271 (8th Cir.), cert. denied,

484 U.S. 855 (1987))). See Lehman v. Prudential Ins. Co. of

America, 74 F.3d 323, 329 (1st Cir. 1996).

Speen's counsel argues that the statement was not

isolated or ambiguous but rather constitutes direct evidence

of age discrimination and reveals that the protected

characteristic -- age -- was a motivating factor in the

decision to fire him. Speen's counsel thus urges us to

conclude that "even standing alone the plaintiff's quotation

of Jack Silverman's comment to him, 'Why do I need a 71 year

old when I can have a 51 year old' is, if credited by the

jury, sufficient toprove .. . [Speen]was fireddue to hisage."

We reach a contrary result because the relevant

case law instructs us not to consider the statement standing

alone but instead to look at all the evidence presented in

the totality of the circumstances. In other words, a fact

finder looking solely at the statement "Why do I need a 71

year old when I can have a 51 year old" could reach a

reasonable inference that Speen was fired because of his age.

But that is not this case. If we consider this statement in

the context of all the evidence presented, which we must do,

since we are not afforded the luxury of selectively picking

and choosing what evidence we will consider, we conclude that

Judge Keeton was correct in ruling that there was

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insufficient evidence for a jury to draw a reasonable

inference that Speen was fired due to his age or permit a

reasonable inference that Crown's proffered reason for

terminating Speen (declining and unsatisfactory sales

figures) was pretextual.

To the extent that we reach a different outcome

than the one Speen urges, Speen's mistaken view of what

precedent requires a court to do in a case like the one at

bar explains this difference. Speen correctly notes that

proffered direct evidence of unlawful employment

discrimination removes a claimant's case from the well-known

McDonnell Douglas three-part test for discrimination (prima

facie case, legitimate business justification, and rebuttal)

operative in essentially the same way in both Massachusetts

and federal courts. We have indicated as much. See Smith v.

F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996) ("On the

relatively rare occasions when a smoking gun is discernible -

- that is, when a plaintiff produces direct evidence that the

protected characteristic was a motivating factor in the

employment action -- the McDonnell Douglas framework is

inapposite."); see also Smith v. Stratus Computer, Inc., 40

F.3d 11, 15 (1st Cir. 1994).

Notwithstanding what Speen would have us believe,

the fact that the familiar framework that guides cases

involving indirect, circumstantial evidence of discrimination

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may be inapposite here does not conclude the matter.

Specifically, whether Silverman's alleged statement actually

constitutes direct evidence of discriminatory motive remains

somewhat of an open question, since the line in the case law

between what constitutes direct and indirect evidence of

discriminatory motive is blurred rather than clearly drawn.

See Smith, 76 F.3d at 421. References to "smoking guns" can

thus be less than fruitful to the extent they obscure the

fact that this Circuit has yet to define clearly what

constitutes direct evidence of discrimination. See Ayala-

Gerena v. Bristol Myers-Squibb Co., No. 95-1867, slip op. at

17 (1st Cir. September 5, 1996) (citing Smith, 76 F.3d at 431

(Bownes, J., concurring)).

Given the relevant jurisprudence and the approach

the district court took in resolving this case, we need not

decide whether or not Silverman's alleged statement

constituted a "smoking gun" because the result here would be

the same either way. As we have previously noted in a

similar case involving appellate review of a directed

verdict, "[d]iscretion is sometimes the better part of valor,

and courts often wisely decide to sidestep difficult

theoretical questions if answers to them are not essential to

the proper resolution of a case." Smith, 76 F.3d at 421. As

in Smith, "[w]e have here a good example of such a prudential

approach. The trial court largely bypassed any differential

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direct evidence/circumstantial evidence tamisage, preferring

to go directly to a finding that, on the totality of the

evidence presented, [Crown and the Silvermans] had proven

that [age] discrimination did not trigger the firing." Id.

The evidence presented in the instant case resolves

the age discrimination issue in favor of the defendants,

whether we find Jack Silverman's alleged statement to be

direct evidence of discrimination (a "smoking gun") or not.

In particular, the evidence presented reveals that no other

salesman experienced a larger decline in sales for the five

year period 1987-1992. The evidence does show that some

salesmen who were not terminated had sales that declined more

than Speen's in absolute dollar terms in the year or two

prior to Speen's termination. But other evidence shows that

Crown salesmen each faced different expectations in terms of

year-to-year sales, depending on the location of their

territory, how long they had covered it, and other factors.

The evidence further indicates that Speen's

supervisors were unhappy with Speen's performance and that

Jack Silverman had complained about Speen's declining sales

figures and attitude on numerous occasions in the two years

or so prior to Speen's termination. In at least one

instance, Silverman did so in front of other Crown salesmen,

much to Speen's embarrassment. Speen's performance, however,

did not improve. The evidence also demonstrates that at

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least two of Crown's more valued customers contacted Crown on

their own volition to complain about Speen or to advise Crown

to replace Speen with "a real salesman." The evidence

further reveals both that Crown had terminated the services

of several salesmen and that other salesmen had retired. No

discernible age-related pattern, however, emerges from this

evidence. Those who were fired included young, middle-aged,

and older salesmen. We again note that out of a sales force

of twenty people, all five salesmen over the age of 70 at the

time of Speen's discharge in December 1992 still sold for

Crown at the time of Speen's trial in March 1996. One of

those active salesmen was over 80 years old.

This proffered evidence -- considered in the light

most favorable to Speen, but also in its entirety -- cannot

be said either to permit a reasonable factfinder to reach the

conclusion that Speen's firing was triggered by age

discrimination or to permit a reasonable inference that

Crown's proffered reason for terminating Speen (declining and

unsatisfactory sales figures) was pretextual. Even if the

jury credited Jack Silverman's alleged statement, therefore,

Speen was not entitled to a jury verdict in his favor.

To be sure, our duty in this appeal from a judgment

as a matter of law is to review the evidence and the

reasonable inferences extractable from it in the light most

favorable to the nonmovant, namely, Speen. While "this

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approach does not allow the court to consider the credibility

of witnesses, resolve conflicts in testimony, or evaluate the

weight of the evidence, neither does it pave the way for

every case, no matter how sketchy, to reach the jury."

Smith, 76 F.3d at 425 (internal quotations and citations

omitted). Put another way, "a mere scintilla of evidence is

not enough to forestall a directed verdict, especially on a

claim or issue as to which the burden of proof belongs to the

objecting party." Id. at 425-26 (internal quotations

omitted). These time-worn principles of law support the

district court's disposition of this part of Speen's action.

Nothing in the Massachusetts cases leads us to

question this result given the fact that the age

discrimination issue we are considering is embedded in

Speen's state common law tort claim. As we noted earlier,

Massachusetts courts have explained that the requisite malice

required for finding liability under a claim for tortious

interference exists "depend[ing] on the evidence in each case

and on what the trier of fact may reasonably infer from that

evidence." Gram, 429 N.E.2d at 24. "Any reasonable

inference of malice must, however, be based on probabilities,

rather than possibilities." Id. at 24-25 (internal

quotations omitted). In view of the language in Gram, we

thus conclude that Massachusetts courts would not view

Speen's claim (that he was fired due to his age) as one

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32

supported by reasonable inferences drawn from the evidence

presented.

Conclusion
Conclusion

Speen failed to provide sufficient evidence to

support a finding that he was a Crown employee who enjoyed

protection under the applicable federal and state statutory

provisions governing age discrimination and pension rights.

Nor did he produce evidence sufficient to support his

remaining Massachusetts common law tort claims. On the

evidence presented, we conclude that the district court's

entry of judgment as a matter of law for the appellee-

defendants was correct.

Affirmed.
Affirmed.

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